On May 10, the Shandaken planning board considered the long-awaited letter from town attorney Richard J. Olson regarding granti ng of a permit to Catskill Mountain Railroad (CMRR) for storage of trains on its Phoenicia property. Board members questioned aspects of the letter’s content, which asserts that no action can be taken by the board at the present, and said they would ask Olson to attend the next planning board workshop meeting on Wednesday, May 31, at 7 p.m.
CMRR chairman Harry Jameson echoed the board’s reservations, stating that Olson did not have the most recent documentation on the railroad’s status. He asked the board to approve CMRR’s special permit request, despite a threat by the Phoenicia Neighbors group to respond with an Article 78 proceeding contesting the approval, and warned that the railroad would launch its own Article 78 if the permit is not granted. The board voted unanimously to discuss the issue in person with Olson before making a decision.
Olson’s letter pointed out that the board cannot legally approve a permit if an unresolved violation is present. The railroad, facing a deadline from the county, moved its trains from the county tracks to CMRR property in January, without a floodplain permit. Town zoning officer Warren Tutt served a notice of violation, requiring the railroad to hire an engineer to determine whether the presence of the train cars would cause an elevation of flood waters by more than one foot during a 100-year flood. At the May 10 meeting, Tutt stated, “CMRR responded and had a survey done. It was reviewed by their engineer and myself, and we determined that storage of units on the property does not indicate a negative environmental impact on the property. So the violation has been resolved.”
Olson further observed that town code forbids granting a special permit for light industrial use in a residential zone, the only possibly applicable exception being for “public utility or transportation use.” CMRR has been arguing that it qualifies as a public transportation facility, although a 1983 document from the New York State Department of Transportation (DOT) states that the tourist excursion line “does not need to be treated as a railroad by DOT.” According to the document, as a public railroad, CMRR would be required to “comply with the usual track standards, maintain and inspect their equipment according to federal and state standards, and only purchase rolling stock which would be operable on conventional railroads.”
Jameson said that Olson may have seen this document, but he had probably not been supplied with a more recent letter from DOT Region 8 Rail Coordinator Greg Hart, stating that CMRR is a public transportation entity. On March 29, the CMRR also submitted a letter from its lawyer, Walter E. Zullig Jr., whom Jameson called an expert in railroad law and the best personal injury attorney in Fort Lauderdale, also confirming that the CMRR was a public transportation business.
Rod Futerfas, attorney for the Phoenicia neighbors who are trying to have the trains ejected from the CMRR yard, has claimed that the railroad would need be approved as a public utility by the state’s Public Service Commission or would have to be a common carrier. “All that jurisdiction was moved to DOT in 1971,” said Jameson, who also said that as neither Olson nor Futerfas has expertise in railroad law, accepting their judgment would be “like asking a plumber how to fix your roof.”
“Mr. Olson has to come to a meeting,” declared planning board chair Don Brewer. “We’re clearly not getting anywhere.” The railroad’s application for a permit to store trains has been under discussion for almost six months.
Jameson noted, “The process has been stalled primarily by Shandaken’s professional obstructionist who is the former Chairperson of the Ulster County Trail Committee, who is working in concert with the Ulster County Executive’s office to destroy the Catskill Mountain Railroad Company so the tracks can be ripped up to construct a hiking trail. As well, she has used a neighbor located on Lower High Street who cannot physically see the proposed project area from her house as a tool to maintain opposition.”
He was referring to the former trail committee chair Kathy Nolan, now regional director for Catskill Mountainkeeper, who was at the meeting, along with Phoenicia resident Anique Taylor, who has led the opposition to the storage of trains in the neighborhood.
Everybody loses?
After the meeting, the Phoenicia Neighbors issued a statement agreeing with “the written opinions of both Mr. Olson and Larry Wolinsky, the lawyer for the Shandaken Zoning Board of Appeals, that the Shandaken Zoning Code does not permit the creation of a rail yard, with or without a storage building, in a residential zone. The CMRR’s claims to special status as a railroad are unfounded and are irrelevant to the basic requirements of Shandaken’s Zoning Code.
“The Neighbors call upon the Zoning Enforcement Officer to set a timeline to initiate the imposition of fines…The presence in Phoenicia of what amounts to a junkyard created by the CMRR is a problem not only for the neighbors but also for new businesses trying to come into Phoenicia, such as Rail Explorers.”
Now that rail bike company Rail Explorers has delayed the launch of its local business (see sidebar), planning board members expressed regret about the loss of tourists from Phoenicia with the inactivity of the train line, which Jameson said had brought in 6000 riders last year.
“Everybody has lost,” said board member John Horn. “The county has lost the rental of the tracks, and we have lost visitors and business and sales tax.”
Rail Explorers plans cancelled for this year
Alex Catchpoole of Rail Explorers confirmed that his company is delaying its plans to conduct rail bike tours along the tracks between Phoenicia and Boiceville. Originally scheduled to begin operations this summer, Rail Explorers hit a snag when the last leg of the tour, parallel to Cold Brook Road in Boiceville, became problematic due to neighbors’ fears about possible noise from passing bikes and environmental concerns.
A further obstacle came from Ulster County’s receipt of higher than expected bids on repair of three washouts along the same section of track. Chris White, Deputy Director of the Ulster County Planning Department, said the county is asking FEMA, which is funding repair of the largest of the washouts, to re-scope the project and accept a new estimate, although the timetable will no longer permit completion by August, as formerly projected.
“If we can get a decision by the end of May, we can get in and do the work,” said White. “Since Rail Explorers isn’t starting this year, it won’t interfere with their operations.” The county engineers estimated $300,000 to $600,000 would be needed for the repairs, but the lowest bid came in at $973,189.71. The difference, said White, was due to the difficulty of access to the site.
“We are going to delay our opening day until the spring of 2018,” said Catchpoole. “The delay in track repairs has pushed our schedule past the summer, too late to start our operation this year. Due to opposition from Cold Brook Road residents, we’re trying to build a tour that will still be a great experience and accessible to everybody. It will take extra time, but we’re still excited about opening in the Catskills, hopefully in April or May.”
Rail Explorers formerly operated in the Adirondacks and has recently launched a tour in Rhode Island, where Catchpoole said, “We’ve had an amazing response from the state and the local community. Tickets are already being sold to visitors who are attracted from far and wide. The locals are embracing the tours as a great use for the track and an exciting new attraction.”++
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